APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY CH AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_43 (13 October 2020)

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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_43.html
Cite as: 2020 SLT 1063, 2021 JC 45, 2020 SCCR 410, [2020] ScotHC HCJAC_43, 2020 GWD 33-424, [2020] HCJAC 43

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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Glennie
Lord Turnbull
[2020] HCJAC 43
HCA/2020/8/XC
OPINION OF LORD CARLOWAY, the LORD JUSTICE GENERAL
In the
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CH
Appellant
against
HER MAJESTYS ADVOCATE
Respondent
Appellant: M Jackson, QC; BastenSneddon
Respondent: A Cameron, AD, Sol Adv; Crown Agent
13 October 2020
[1]       I am in full agreement with the reasoning of your Ladyship, the Lord Justice Clerk,
particularly on the analysis of the concepts of relevancy and collateral matters following
CJM v HM Advocate 2013 SCCR 215. This appeal should be refused. I also agree with the
opinion of Lord Turnbull.
Page 2 ⇓
2
[2]       The appellant is charged with raping the complainer after a night out with her and a
female friend of the complainer. The libel is that, when the complainer was incapable of
giving consent as a result of her consumption of alcohol, the appellant removed her clothes,
tied her up and penetrated her vagina with his penis. The appellant’s account is that the
events libelled did not take place. He seems to accept that the complainer was under the
influence of alcohol to some extent, since the appellant maintains that she was smelling of
alcohol.
[3]       In that state of affairs, the issues for trial are very straightforward: (1) was the
complainer so drunk as to be incapable of giving consent; and (2) did the appellant have
sexual intercourse with her while she was in that state. Anything which does not bear upon
these two issues is irrelevant.
[4]       The appellant seeks to lead evidence that, before going out with the complainer and
her friend, he had had intercourse with her at the locus. At the material time, the appellant
maintains that the complainer “came on to him” in a disinhibited manner, but he repelled
her advances. He did not remove her clothes, tie her up or rape her. He did have
intercourse with her on the following day.
[5]       This is a classic case of an accused person attempting to deflect the jury’s attention
away from the real issues for trial by introducing irrelevant and collateral matters. Whether
a complainer consented to have intercourse with an accused on different occasions is not
normally relevant to the whether she consented to intercourse at the material time (see SJ v
HM Advocate [2020] HCJAC 18, Lord Turnbull at paras [56] and [57], Lord Pentland at
para [79]). It may be relevant in certain circumstances, including to explain scientific
findings, but these are not present here where the issue is not concerned with consent at all
but with the state of the complainer and whether intercourse took place.
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3
[6]       The general approach to relevancy and collateral matters was, it was hoped, made
clear by the Full Bench in CJM v HM Advocate (supra, LJC (Carloway), with whom at least
Lords Menzies and Brodie and Lady Cosgrove agreed, at para [27] et seq under reference to
the authorities, including Brady v HM Advocate 1986 JC 68, LJC (Ross) at 197-198). It is
regrettable that, despite several clear opinions of the court over the years since then, some
judges and sheriffs have continued to fail to apply what ought to be well known rules of
evidence in favour of determining what they consider to be fair, looking primarily, if not
exclusively, at the interests of the accused rather than, in addition to his Article 6 right to a
fair trial, the wider interests of justice, including the rights of the complainer (CJM v HM
Advocate (supra) LJC (Carloway) at para [44]).
[7]       Even if the evidence were relevant and not collateral, it is prohibited by section 274
of the Criminal Procedure (Scotland) Act 1995. This excludes evidence which tends to show
that a complainer has at any time engaged in sexual behaviour not forming the subject
matter of the charge. Section 275 does allow exceptions to this but, for the reasons given by
your Ladyship, they do not apply to the appellant’s case. This is because the evidence,
which the appellant seeks to lead, is both irrelevant to the appellant’s guilt and its probative
value is not likely to outweigh the prejudice to the proper administration of justice, notably
in connection with the complainer’s dignity and privacy. The admission of this evidence or
line of questioning would, as already observed, deflect the jury’s attention away from the
libel and onto other matters which occurred either earlier or later than the events with which
the trial ought to be concerned.
[8]       The facts which the appellant seeks to prove do not come close to forming part of the
res gestae for the reasons given by Lord Turnbull under reference to Cinci v HM Advocate
2004 JC 103 and O’Shea v HM Advocate 2015 SCCR 66. In so far as it may be suggested that
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these facts are relevant on the basis of either common sense or logic, Lord Turnbull’s
reference to the dicta of Justice L’Heureux-Dube in R v Seaboyer [1991] 2 SCR 577 (at 679) is
entirely apposite as are those which make a distinction between the relevance of a long
standing affectionate relationship and specific acts of sexual intercourse. R v A (No 2)
[2002] 1 AC 45 was not referred to in the submissions by either party to the court. This was no
doubt a considered decision. Suffice it to say, it predates the dicta of Lady Hale in R v C
[2009] 1 WLR 1786 (at para 27) which might be seen as more reflective of modern thinking
and values.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Glennie
Lord Turnbull
[2020] HCJAC 43
HCA/2020/8/XC
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CH
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: M Jackson, QC; BastenSneddon
Respondent: A Cameron, AD, Sol Adv; Crown Agent
13 October 2020
Introduction
[9]       This is an appeal under section 74 of the Criminal Procedure (Scotland) Act 1995
(“the 1995 Act”) against the decision of the preliminary hearing judge refusing
paragraph i(a) of the appellant’s application under section 275 of the 1995 Act. This part of
the application was not opposed by the Crown.
The Legislation
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6
[10]       “274 Restrictions on ev idence relating to sexual offences
(1) In the trial of a person charged with an offence to which section 288C of this Act
applies, the court shall not admit, or allow questioning designed to elicit, evidence
which shows or tends to show that the complainer
(a) is not of good character (whether in relation to sexual matters or
otherwise);
(b) has, at any time, engaged in sexual behaviour not forming part of the
subject matter of the charge;
(c) has, at any time (other than shortly before, at the same time as or shortly
after the acts which form part of the subject matter of the charge), engaged in
such behaviour, not being sexual behaviour, as might found the inference
that the complainer
(i) is likely to have consented to those acts; or
(ii) is not a credible or reliable witness; or
(d) has, at any time, been subject to any such condition or predisposition as
might found the inference referred to in sub-paragraph (c) above.
275 Exception to restrictions under section 274
(1) The court may, on application made to it, admit such evidence or allow such
questioning as is referred to in subsection (1) of section 274 of this Act if satisfied
that
(a) the evidence or questioning will relate only to a specific occurrence or
occurrences of sexual or other behaviour[,] or to specific facts
demonstrating
(i) the complainer’s character; or
(ii) any condition or predisposition to which the complainer is or has
been subject;
(b) that occurrence or those occurrences of behaviour or facts are relevant to
establishing whether the accused is guilty of the offence with which he is
charged; and
(c) the probative value of the evidence sought to be admitted or elicited is
significant and is likely to outweigh any risk of prejudice to the proper
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administration of justice arising from its being admitted or elicited.
(2) In subsection (1) above
(a) the reference to an occurrence or occurrences of sexual behaviour
includes a reference to undergoing or being made subject to any experience of
a sexual nature;
(b) “the proper administration of justice” includes
(i) appropriate protection of a complainer’s dignity and privacy; and
(ii) ensuring that the facts and circumstances of which a jury is made
aware are, in cases of offences to which section 288C of this Act
applies, relevant to an issue which is to be put before the jury and
commensurate to the importance of that issue to the jury’s verdict,
(3) An application for the purposes of subsection (1) above shall be in writing and
shall set out
(a) the evidence sought to be admitted or elicited;
(b) the nature of any questioning proposed;
(c) the issues at the trial to which that evidence is considered to be relevant;
(d) the reasons why that evidence is considered relevant to those issues;
(e) the inferences which the applicant proposes to submit to the court that it
should draw from that evidence; and
(f) such other information as is of a kind specified for the purposes of this
paragraph in Act of Adjournal.
….
(6) The court shall state its reasons for its decision under subsection (1) above, and
may make that decision subject to conditions which may include compliance with
directions issued by it.
(7) Where a court admits evidence or allows questioning under subsection (1) above,
its decision to do so shall include a statement
(a) of what items of evidence it is admitting or lines of questioning it is
allowing;
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8
(b) of the reasons for its conclusion that the evidence to be admitted or to be
elicited by the questioning is admissible;
(c) of the issues at the trial to which it considers that that evidence is relevant.
(8) A condition under subsection (6) above may consist of a limitation on the extent
to which evidence
(a) to be admitted; or
(b) to be elicited by questioning to be allowed,
may be argued to support a particular inference specified in the condition.
(9) Where evidence is admitted or questioning allowed under this section, the court
at any time may
(a) as it thinks fit; and
(b) notwithstanding the terms of its decision under subsection (1) above or
any condition under subsection (6) above,
limit the extent of evidence to be admitted or questioning to be allowed.”
Background
[11]       The application related to a charge of rape in the following terms:
“(003) on an occasion between 1 July 2017 and 31 July 2017, both dates inclusive, at
[an address in Fife], you… did assault [the complainer] and did whilst she was
intoxicated with alcohol and incapable of giving or withholding consent, remove her
clothing, bind her body with ropes, bind her hands with rope, attach a bar to her
ankles, repeatedly penetrate her vagina with your penis and you did thus rape her:
…..;”
The defence application
[12]       The application is introduced with a statement that the appellant denies having
sexual intercourse with the complainer on an occasion when she was incapable of
withholding or giving consent due to her being intoxicated.
The evidence to be elicited
[13]       The evidence sought to be admitted or elicited was that the appellant was introduced
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9
to the complainer by Crown witness number 5 (“A”) during July 2017. They became
“Facebook friends” and communicated for about a week before arranging a night out which
included “A”. The appellant picked up the complainer in his car from near the house which
he understood she occupied with her ex-partner. Before meeting up with “A” the
complainer and the appellant returned to the locus of charge 3 and had consensual sexual
intercourse on 2 occasions.
[14]       The complainer and “A” were drinking alcohol during the night out, but the
appellant was not as he was driving. The complainer returned to the locus with the
appellant. There she “came on to him” because she had been drinking and was behaving in
a disinhibited manner. He refused to engage in any sexual activity with the complainer
because he has an aversion to the smell of alcohol. The complainer was annoyed and
frustrated at this. The following morning he had consensual sexual intercourse with the
complainer.
The nature of the proposed questioning
[15]       This was specified simply as putting this version of events to the complainer, leading
it from the appellant, and putting questions relevant thereto to “A”.
The issues at the trial to which the evidence was said to be relevant
[16]       The only specification given under this heading is the assertion that the appellant
denies the allegation in charge 3, and that the “evidence referred to at para 1 (a) is his
account of events at or around the time of the alleged offence”.
The reasons why the evidence is considered to be relevant
[17]       It is asserted that the evidence “is an account of the two days that the [appellant]
spent with the complainer”, is contrary to her anticipated evidence and “serves to rebut the
allegation that she has made and that informs the libel in charge 3”.
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10
The inferences which the applicant proposes to submit to the court that it should draw from
the evidence
[18]       These are said to be that the appellant is a credible and reliable witness, and that the
jury should be cautious before accepting the account of the complainer.
The decision of the Preliminary hearing judge
[19]       The preliminary hearing judge granted the application but only so far as capable of
establishing that the accused and complainer went out on a night out. The preliminary
hearing judge did not regard any evidence about the appellant and complainer having
sexual intercourse on occasions other than that in the libel as relevant. The libel was one of
having intercourse with the complainer whilst she was intoxicated and thereby unable to
give consent. The preliminary hearing judge considered that nothing had been put before
her to indicate that there was anything of any relevance in evidence that the complainer had
consented to have sexual intercourse with the appellant, while not intoxicated, on other
occasions.
The appeal
[20]       A Note of Appeal has been lodged but this does not in fact specify any ground of
appeal, nor does it contain any legal propositions. It does not state where the preliminary
hearing judge can be said to have erred in her reasoning or why her decision should be
impugned. Rather it simply asserts that, the appellant’s evidence differing from that of the
complainer, he “should be allowed to give his version in full given that he would be giving
evidence of events said to have taken place during a forty eight hour period surrounding the
alleged offence”. It is further asserted that if the appellant is not allowed to “give his
position in full in relation to that 48 hour period his evidence will inevitably be disjointed
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11
and have gaps in it which will adversely impact on his credibility”. It is asserted that the
appellant’s position that he did not wish to undertake sexual activity with the complainer
when she was drunk was “bolstered by his evidence that he was willing to have sexual
intercourse [with her] very shortly before and after the time of the alleged offence when she
was sober, and not smelling of alcohol”.
Submissions for the appellant
[21]       There was a narrow period of time when the couple were in each other’s company.
Were the appellant prohibited from explaining his position that sexual activity occurred
prior to and after but not at the time of the alleged incident the jury would have from him
only a blank denial of the offence. This came close to denial of the appellant’s right to give
evidence, at least in any meaningful way.
[22]       While it was recognised that section 274, as a general rule, precluded evidence
relating to sexual behaviour of the complainer other than that forming the libel of the
charge, section 275 (1)(a)(i) allowed evidence of sexual behaviour of the complainer to be led
if “the evidence demonstrates the complainer’s character”.
[23]       The primary reason the appellant wished to be allowed to lead the evidence was to
allow him to give his version of events in order to rebut the complainer’s evidence. The
evidence if accepted would have a negative impact on the assessment of the complainer’s
credibility and/or reliability which is a way of demonstrating her character.
[24]       Section 275(1)(b) allowed evidence of previous sexual behaviour of the complainer to
be led if that occurrence or those occurrences of behaviour or facts were relevant to
establishing whether the accused was guilty of the offence with which he is charged. The
evidence was relevant because it was the appellant’s version of events. The present case
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was one of the situations where the evidence of sexual activity not referred to in the charge
was so closely related to the alleged offence in time, place and character that it was not
collateral. The issue of consent did not arise because the appellant says that the specific
episode of intercourse libelled in the charge did not occur. The appellant maintains that on
return to the locus, the complainer “came on to him” because she had been drinking and
was behaving in a disinhibited manner. He refused to engage in any sexual activity with
her at that time because he has an aversion to the smell of alcohol. The complainer was
annoyed and frustrated at this. It was recognised that assertions that the complainer “came
on to” the appellant might require an application, but assertions that she was drunk and
acting in a disinhibited manner would not.
[25]       Section 275(1)(c) allowed the evidence in question to be admitted if the probative
value was significant and was likely to outweigh any risk of prejudice to the proper
administration of justice arising from its admission. The evidence was significant because
without it, the appellant would be severely hampered in explaining his version of events
should he choose to give evidence - there would be inexplicable gaps in his account. The
complainer’s dignity and privacy would remain appropriately protected if the evidence
were to be admitted.
[26]       Counsel for the appellant recognised that as the courts had stated that consent had to
be given at the time that sexual activity libelled in the charge was said the have taken place
(GW v HM Advocate [2019] HCJAC 23), evidence of previous consent to sexual activity
between the same parties would rarely be relevant (Oliver v HM Advocate [2019] HCJAC 93).
Each case was different and fell to be decided on its own facts and circumstances
(HM Advocate v JW [2020 HCJ 11], Lord Turnbull at [30]). The present application however,
did not relate to the issue of consent but rather whether the allegation libelled in charge 3
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took place. While the majority of the authorities in this area related to applications made
where the issue was one of consent and not whether the activity libelled in the charge
actually took place, it was submitted that the dicta of the court in Oliver v HM Advocate
[2019] HCJAC 93 at paragraphs 4, 9 & 10 may nonetheless be of assistance to the court. In
that case the court considered that evidence of sexual activity within a short period after an
alleged incident could be relevant, and admissible as bearing on credibility.
Submissions for the Crown
[27]       It was submitted that the preliminary hearing judge did not err in law in refusing to
allow the evidence, notwithstanding that the Crown had not opposed the admission of the
evidence at the original hearing.
[28]       Charge 3 described an allegation of the complainer being intoxicated and incapable
of giving or withholding consent at the time of penetrative sexual activity, which the
appellant denied. The central issues for the jury were (1) whether the appellant engaged in
penetrative sexual activity at that time; and (2) if he did, whether the complainer was
incapable of giving or withholding her consent.
[29]       The complainer denied that there was any consensual sexual intercourse either
before or after the incident libelled. Such matters, it was submitted, were thus not readily
identifiable, were disputed and were collateral. They were irrelevant at common law as
regards either of the two central issues for the jury to determine- LL v HM Advocate 2018 JC
182; Oliver v HM Advocate [2019] HCJAC 93; and HM Advocate v JW [2020] HCJ 11.
[30]       Esto the evidence was admissible at common law, its admission was prohibited
under section 274, and none of the exceptions in section 275 was made out. The application
failed to specify adequately the issues at trial to which the evidence sought to be admitted
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was relevant, the reasons why that evidence was relevant and/or the inferences a jury could
reasonably draw from that evidence as required in terms of section 275(3)(c),(d) or (e).
[31]       The appellant’s description that the complainer had been drinking, was behaving in
a disinhibited manner, “came on to him” and he refused to engage in sexual activity with
her at this time, was his account of the subject matter of the charge. The written submissions
for the Crown asserted that a section 275 application was not required to lead this evidence.
However, in oral submission the Advocate Depute referred to the Preliminary Hearing
Bench Book, para 9.2.4 of which stated that:
“Unless a particular type of sexual conduct is libelled within the charge it is
suggested that it cannot be the subject matter of the charge. Any other interpretation
creates uncertainty and has the potential to defeat the objects of the legislation which
include that the complainer is not ambushed unfairly.
Accordingly if the accused wishes to say that sexual activity other than that referred
to in the libel took place on the occasion which features in the charge, it is suggested
that he requires to make a section 275 application.”
It was recognised that differing views on this matter had been expressed. The Advocate
Depute submitted that if the passage from the bench book correctly stated matters, the
appellant may require an application to lead evidence that the complainer attempted to
engage in sexual activity with him and behaved in a disinhibited fashion. To that extent he
departed from the written submissions.
[32]       Other incidents of consensual activity had no bearing on the two central issues for
the jury. In particular, his description of post incident sexual relations was not necessary to
explain other incriminating evidence. In any event, the probative value of the evidence
would be insufficient to outweigh the risk of prejudice to the administration of justice
including the appropriate protection of the complainer’s dignity and privacy.
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[33]       Pressed by the court to offer submissions in respect of Oliver v HMA and potential
inconsistencies between that case and others, such as JW, the Advocate Depute submitted
that sexual behaviour in aftermath of an alleged incident was likely to be irrelevant, but one
could not say that it would never be relevant. There was no hard edged rule, since cases
were fact specific. A possible example where such evidence may be relevant would be
where it provided an alternative explanation for injury or scientific evidence. As to the
proposition, apparently set out in Oliver that if a woman consents to sexual activity with the
accused a day or two, or longer, after an alleged sexual assault or rape, this could affect her
credibility, in that it allowed an inference that it more likely that the prior sexual encounter
was also consensual, the Crown did not accept this. Consensual sexual activity following on
non-consensual activity cannot allow such an inference.
Analysis and decision
General test of admissibility at common law
[34]       The touchstone for consideration of an application under section 275 is that the
evidence sought to be elicited is admissible at common law. That question of admissibility
at common law is not simply a question of the exercise of a general discretion in the interests
of fairness. As the court pointed out in CJM (para 32) it involves applying a
“well-tried and tested rule which exists for pragmatic reasons in connection with the
administration of justice generally and for the protection of witnesses, notably
complainers, who cannot be expected to anticipate, and defend themselves against,
personal attack. There are recognised exceptions to the rule in criminal cases in
situations where the collateral fact can be demonstrated more or less instantly and
cannot be challenged. Thus the dishonesty of a witness can be proved, but only by
reference to established fact in the form of a previous conviction”.
[35]       As the court in CJM explained (para 28)
“The starting-point for a decision on whether this evidence is admissible is the
general principle that evidence is only admissible if it is 'relevant' ... Evidence is
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relevant when it either bears directly on a fact in issue (ie the libel) or does so
indirectly because it relates to a fact which makes a fact in issue more or less
probable ... The determination of whether a fact is relevant depends very much
upon its context and the degree of connection between what is sought to be proved,
or disproved, and the facts libelled. It is a 'matter of applying logic and experience to
the circumstances of the particular case' …. The question is one of degree: 'the
determining factor being whether the matters are, in a reasonable sense, pertinent
and relevant and whether they have a reasonably direct bearing on the subject under
investigation' …”.
[36]       The decision in CJM may be summarised thus:
(i) evidence is only admissible if it is relevant;
(ii) evidence is relevant if it makes a fact in issue more or less probable: the
testimony must have a reasonably direct bearing on the subject matter of the
prosecution; this would exclude collateral evidence;
(iii) if evidence is inadmissible at common law it is inadmissible under the statute;
(iv) the very nature of the statutory provisions is to restrict the admissibility of
evidence permissible at common law, not to expand it;
(v) the former common law exceptions regarding the moral character of complainers
was “swept away” by the legislation;
(vi) the conditions for an exception within section 275 are cumulative.
[37]       Amongst other sources of the general rule, the court referred to Brady v HM Advocate,
1986 JC 68 per the Lord Justice Clerk (Ross) at pp 73:
“The general rule is that it is not admissible to lead evidence on collateral matters in
a criminal trial. Various justifications have been put forward for this rule. The
existence of a collateral fact does not render more probable the existence of the fact in
issue; at best a collateral matter can have only an indirect bearing on the matter in
issue; a jury may become confused by having to consider collateral matters and may
have their attention diverted from the true matter in issue. Whatever the justification
for it, the general rule is clear”
[38]       The matter is put clearly in Walkers’ Evidence (4th ed) at para 7.1:
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17
“Generally speaking evidence of character and evidence regarding an issue which is
collateral to the main issue is inadmissible. A “collateral issue” is one which runs
parallel to a fact in issue but evidence of it is generally inadmissible on grounds of
relevance, because the existence of the collateral fact does not have a reasonably
direct bearing upon a fact in issue and thus does not render more or less probable the
existence of that fact, and it is inexpedient to allow an inquiry to be confused and
protracted by enquiries into other matters.”
The effect of the statutory provisions
[39]       If the evidence would not be admissible at common law, it cannot be admitted in
terms of the statute. If the evidence would be admissible at common law, it is nevertheless
inadmissible if it relates to the matters referred to in section 274(1), and may only be
permitted if the conditions in section 275 are met.
[40]       It is important to understand that the granting of an application under section 275, as
with admissibility in general, is based on the operation of rules, both common law and
statutory: it is not a simple matter of the exercise of a general discretion in the interests of
fairness. That mistaken perception was what undermined the original rape shield laws, as
explained in CJM v HM Advocate in 2013:
“It is not unreasonable to comment that some courts, and prosecutors, appear to
have found it difficult to balance the clear intent to restrict evidence in the wider
interests of justice for all, and in particular complainers, with what they consider to
be fair, looking primarily to the interests of the accused.”
[41]       Sections 274 and 275 together constitute a statutory scheme which provides a general
rule that evidence within categories (a) (d) of section 274 is not admissible in sexual cases.
Section 274 provides that the court “shall not admit” such evidence. This constitutes a
complete prohibition: unless the evidence comes within the specified exceptions,
cumulatively, of section 275 the evidence remains inadmissible. The sections, to use the
phrase adopted in CJM (para 44) provide an “elaborate code” defining the parameters
within which evidence must fit if it is to be admitted in contravention of the statutory
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prohibition. The statute specifies the requirements of a valid application, which must be in
writing and must address each of the matters identified in section 285(3). As Lord Brodie
pointed out in HMA v MA 2008 SCCR 84, Parliament has been careful to impose quite
precise requirements. An application must, at a minimum, comply with the requirements of
section 275(3), and set out the requisite detail in a comprehensible manner. Careful attention
to all parts of section 275(3) is necessary in order to explain to the court why it is being
invited to allow evidence which would not otherwise be admissible. In HMA v MA the
court went on to say (para 8):
“... details of the evidence, questioning, issues, reasons, and inferences which are
referred to in paragraphs (a)(e) of the subsection are set out in the written
application in a reasonably specific and comprehensible manner … …regard
should be had to the role of the application as an advocacy document, by which I
mean a means of informing the court as to why the application is being made and as
an aid in persuading the court that the tests are met. Parties, it may be assumed,
will be familiar with their respective cases. The court, on the other hand, while it
may be able to gather something from the indictment, any special defence and the
documentary productions, if available, cannot know precisely how it is proposed to
prosecute and to defend the charge. If it is to make a decision on a section 275(1)
application the court is likely to require some information, specific to the instant
case, and in sufficient detail to allow it to understand why it is being invited to admit
otherwise inadmissible evidence. In my opinion, that information should be
contained in the written application.”
[42]       In the present case, only cursory consideration appears to have been given to these
matters. Experience suggests that this is not uncommon. In LL v HM Advocate it was
remarkable that neither at the preliminary hearing nor in the appeal could counsel identify
any proper inference that might be drawn, or say how the issue bore on the question of free
agreement at the time of the incident. Paragraph (d) of subsection 3 was not even
addressed, either in the application or in the submission. Equally, in HMA v JG
[ , the application seems to have complied only with the more straightforward
requirements of subsection (3), namely (a) and (b). So far as (c) (e) were concerned the
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application seems to have done no more than parrot the terms of the legislation. This was
not sufficient to comply with the statutory requirements and the application itself was thus
seriously deficient in form. Apart from the deficient terms of the application, the other
notable point in that case was that there was no attempt during submissions by either side to
address the conditions specified in paragraphs (a) or (c) of section 275(1), despite the fact
that the section imposes a cumulative test.
[43]       Paragraphs (c)-(e) of section 275(3) are of particular importance, since these are
designed to explain to the court:
(i) the issue(s) to which the evidence is said to be relevant;
(ii) why it is said to be relevant a mere assertion that it is will not suffice;
(iii) what inferences the party will seek to draw from the evidence; and
(iv) why it would be legitimate for the jury to be entitled to consider those inferences
in the circumstances of the case.
It should go without saying that the application should have regard to all three of the
conditions specified in section 275(1), as well as the impact on the complainer’s privacy and
dignity which is an essential part of condition (c). It should be appreciated that the use to
which the material, if admitted, may be put is constrained by the inferences which the court
considers are reasonable ones to draw from the evidence and which it would be reasonably
open to the jury to draw. That is why section 275(8) makes provision for the court to place a
limitation on the extent to which evidence may be used to argue specific inferences. It is
also why detailed attention must be given to section 275(3) at the time of drafting the
application, with a sufficient degree of specification.
[44]       These matters were all identified in RN v HMA [2020] HCJAC 3:
Page 20 ⇓
20
“26. When representatives are preparing an application under section 275 they
should keep all these matters in mind. They should understand that since the
evidence is prima facie inadmissible the focus should be on providing a full
explanation for the proposition that the court should nevertheless admit the
evidence, concentrating strongly on the statutory tests. Proper consideration of
section 275(3) is important in this regard. This was noted by Lord Brodie in HMA v
MA 2008 SCCR 84 where he stated that an application must, at a minimum, comply
with the requirements of this subsection, and set out the requisite detail in a
comprehensible manner. This is material which the court requires in order to
understand why it is being invited to admit otherwise inadmissible evidence. All the
matters referred to therein should be included in the application and should be
addressed separately in respect of each piece of evidence or proposed questioning.
Paragraph (a) is self-explanatory. Paragraph (b) is designed to enable the court to
understand not only what is to be put but the evidential basis for doing so.
Paragraphs (c) to (e) are particularly important. Paragraph (c) requires the
application to explain what the issues at trial are to which the evidence is relevant,
and paragraph (d) requires an explanation of why it may be considered relevant to
those issues. The paragraphs hinge together, and it is singularly unhelpful simply to
say "credibility and reliability" under (c) and make a mere assertion under (d) that
the evidence is relevant. Bald assertions will not be sufficient to meet the
requirements of the subsection (see JG v HMA 2019 HCJ 71, para 35). Explanation is
required. The explanation should lead naturally to being able properly to set out for
the court in a clear and understandable way the inferences to which it is said the
evidence reasonably gives rise. …. These are issues which should be addressed at
the time of drafting the application, since the court, before granting an application,
must understand what these inferences are, and be satisfied that they are legitimate
ones which could reasonably be considered by a jury on the basis of the evidence in
question. Deficiencies in an application may result in the court refusing to hear the
application (see JG , paragraph 36).”
In fairness, senior counsel for the appellant frankly acknowledged that the present
application was significantly deficient in detail and specification.
The relevance of pre or post incident consensual sexual activity
[45]       The cases of LL v HMA 2018 JC 182; SJ v HMA 2020 SCCR 227; Oliver v HMA
[2019] HCJAC 93; and Lee Thomson v HMA, 13 December, [2019] HCJAC 2019 unreported, are all
cases in which this point was aired.
[46]       In LL, where the libel concerned charges of rape and sexual assault alleged to have
been committed by the appellant in July 2016, with a special defence of consent, the court
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considered that evidence of consensual sex between the parties in October 2015 at the same
locus was not admissible at common law being collateral to the events in the charge. The
court went on to say (para 14):
“We simply do not see why the fact that there was free agreement and reasonable
belief as to that agreement on one occasion, makes it more or less likely, as a matter
of generality, that there was free agreement and reasonable belief as to that
agreement on another occasion many months later.”
[47]       This accorded with the view of the PH judge that:
“Consenting to intercourse on an occasion in October 2015 shed no light on whether
there was consent to intercourse or reasonable belief that there was consent to
intercourse in July 2016”.
[48]       In SJ there were libelled charges of sexual assault and rape in respect of the one
complainer on the evening of 11 January 2019, into the morning of 12 January, again with a
special defence of consent. In terms of a section 275 application the appellant sought to elicit
(a) evidence of an instance of consensual sexual intercourse on 1 January 2019, and (b) of the
complainer having sexual intercourse with B, at the locus, shortly after the alleged incident
on 12 January. It was argued that evidence of the former was relevant to show the true
nature of relations between the appellant and the complainer. Rejecting that argument,
Lord Turnbull, with whom Lord Pentland agreed, said:
[56] In my opinion, there can be no freestanding purpose, or relevance, in
establishing that the friendship between the complainer and the appellant had
included prior amorous or consensual sexual behaviour of a limited kind. Such
evidence can only pass the test of relevance if it bears in some meaningful way on the
issue at trial.
[57] The issue at trial will be whether or not the complainer consented to the
events of 11/12 January. To seek to demonstrate that the appellant and the
complainer’s ‘real’ level of prior association was one which included recent amorous
and sexual contact, can only have any relevance to this issue if it is contended that
evidence of prior sexual contact will illuminate the question of whether or not
consent was present on 11/12 January. Senior counsel for the appellant expressly
rejected the suggestion that this was the purpose in leading this evidence. However,
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it is fair to comment that, when pressed, counsel herself had some difficulty in
articulating a proposition which identified where the relevance of the evidence lay.”
[49]       At para 69 Lord Turnbull suggested that the evidence “would be an almost classic
example of a collateral issue”. The second piece of evidence which was the subject of the
application was “entirely irrelevant”.
[50]       Lord Pentland, in his concurring opinion, stated that the evidence referred to in
paragraph (a) of the application was “not capable of shedding any light on the real issues” at
trial. The evidence was remote in time from the period of the libel, and related to a quite
different context. The evidence was “quintessentially collateral in nature” (para 76). He
added (para 78) that:
“To say that these alleged facts add colour or context or form the background to the
circumstantial case against the appellant merely begs the question [of their
relevance].”
[51]       Lord Pentland also noted (para 79) that:
“In past practice this sort of peripheral and hence irrelevant evidence was sometimes
led on the basis that the events that were the subject of the libel had to be put into a
wider context. Recent authorities in this court, such as those to which Lord Turnbull
refers, have brought a much sharper focus to bear on the question of whether
evidence of other sexual behaviour, which I note is now the subject of a strong
statutory prohibition in section 274(1)(b), is truly capable of assisting in the
resolution of the real issues Suppose that all of the matters sought to be led were
proved at the trial to be factually accurate, what could one logically draw from them
for the purpose of deciding whether the appellant and the complainer engaged in
non-consensual sexual activity as alleged in charges 1 and 2? In my opinion, the
answer to that question is: nothing.”
[52]       In LL the argument was similar to that noted in SJ, namely that, irrespective of the
particular circumstances, evidence of a previous consensual sexual encounter was relevant
to resolution of the issues that will arise in a trial on an indictment libelling a charge of rape,
as providing the “full picture” as to the relationship between the accused and the
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complainer. The argument relied on a series of older decisions, many from the 19th century.
The court rejected that argument stating (para 19) that whilst such cases might reflect a
“general late nineteenth century view (or at least a late nineteenth century judge's
view) about how people might be expected to behave. We do not see it as a reliable
guide as to how people might be expected to behave in the early twenty-first
century. Understandings have changed.”
[53]       In Oliver v HMA the charges libelled offences of sexual assault and assault against
complainer A on 3 and 4 September 2017 and included a charge of rape and attempted
murder in relation to complainer B in October 2018. In relation to the charges involving A
the defence was that these incidents had simply not happened. In relation to B the appellant
lodged a special defence of consent asserting a consensual course of sado-masochistic
behaviour. The preliminary hearing judge refused those parts of a section 275 application in
respect of A whereby the appellant sought to lead evidence (a) that the complainer chose to
stay with the appellant in his flat in the period immediately following the events libelled,
between 3 and 5 September 2017, and that during this time they engaged in sexual
intercourse; and (c) of a similar kind but relating to a period at least 8 weeks after the alleged
incident.
[54]       The basis upon which both were said to be relevant was that the complainer’s actions
in staying with the appellant and engaging in consensual sexual intercourse with him in this
period cast serious doubt on her credibility, in that it was unlikely that she would have
agreed to do this in the immediate aftermath of a sexual assault by the appellant on her on
3 September, and a separate assault by him on her on 4 September.
[55]       The court had no difficulty in concluding that the preliminary hearing judge had
been correct to refuse part (c) as collateral, being too remote to have any bearing on events at
the time of the alleged incident. In respect of part (a), noting that it would rarely be relevant
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to lead evidence that a complainer has consented to sexual activity on an occasion prior to
the events libelled, the court considered that the situation was different in relation “to
material concerning actions by a complainer in the immediate aftermath of an alleged event”
by which they meant “a period of hours, or perhaps a day or two, following an alleged
event”. So long as restricted in this way to the “immediate aftermath” of the libel the matter
would not be collateral, and was of sufficient probative value to render the evidence
admissible. The reasons the court gave appear in para 9:
“It appears to us that there is some force in the submission for the appellant that a
jury may find assistance, when assessing the credibility of a complainer, from
evidence as to his/her behaviour in the immediate aftermath of events which are
alleged to have occurred. They might take the view that, even in a situation where
the appellant and the complainer are partners, the complainer’s decision to continue
to reside in the same house with him and to engage in consensual sexual relations
with him over the following day or two undermine the complainer’s credibility. Of
course, they might not take this view, and there might be circumstances to explain
the complainer’s behaviour. Juries are frequently asked to consider the behaviour of
a complainer in the immediate aftermath of an event, for example, when considering
the evidential value of distress in supporting lack of consent.”
[56]       In relation to B, the application contained a paragraph, (e), seeking to lead evidence
of various statements said to have been made by the complainer to the appellant in the
course of a train journey on the day before the events libelled as rape, which included the
libel of anal penetration. The original wording of the application included an assertion that
the complainer stated that she wanted to engage in anal intercourse with the appellant
outside later on that evening. The preliminary hearing judge refused most of paragraph (e)
but allowed the statement to the extent of permitting the suggestion that the complainer told
the applicant that she wanted to engage in sexual activity with him at his house on that date.
Her reasoning was endorsed in the appeal, with the comment that the original statement
might even have to be revisited once the results of an examination of phone messages was
known.
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25
[57]       In Thomson the application related to two complainers, and in each case asserted that
after the final date of the libel relating to each complainer the complainer and appellant had
continued to meet regularly for consensual sexual intercourse. In refusing the appeal the
court remarked:
“As the PH judge identified, the fact that a person may have consented to sexual
activity on one occasion has no bearing at all on whether they consented on another
occasion, either before or after the incident in question, save possibly, in particular
circumstances, in the immediate aftermath. In general terms, the fact that a
complainer has consented to sexual activity on previous occasions does not make it
more or less likely that he/she will consent to sexual activity on a subsequent
occasion. It follows, we think, that it will rarely be relevant to lead evidence that a
complainer has consented to sexual activity on an occasion sometime before the
events libelled.”
The phrase “save possibly, in particular circumstances, in the immediate aftermath” is
clearly a reference to Oliver and may suggest some doubt about that decision, at least in
respect of the envisaged timescale during which subsequent sexual behaviour may be said
to have relevance.
[58]       The apparent tension between Thomson and Oliver was recognised by Lord Turnbull
in the first instance case of JW. Part of the application in JW related to alleged consensual
sexual activity some hours after the alleged incident, which was said to be relevant to the
question of consent at the time of the prior, libelled, incident. Rejecting that submission,
Lord Turnbull stated:
“26. In my opinion, the contention that the appellant engaged in consensual
sexual intercourse with the complainer at a point between 9.30am and 10.30am has
no bearing at all on whether she consented to sexual activity with him in the early
hours of the morning at his house at some time between 4.30am and 7.00am. In the
course of the debate, Ms Green's initial submission was that evidence of a consensual
act of this sort would have a direct bearing on the question of whether consent was
present on the earlier occasion. This seemed to be in conflict with the concept of
autonomy which underpins the Sexual Offences (Scotland) Act. I thought it would
be of value to bear in mind the remarks made by Lady Hale in R v Cooper
[2009] UKHL 42 , (as quoted with approval by the Lord Justice-General (Carloway) at
paragraph [31] of GW v HM Advocate ):
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26
‘[I]t is difficult to think of an activity which is more person and situation
specific than sexual relations. One does not consent to sex in general. One
consents to this act of sex with this person at this time and in this place.
Autonomy entails the freedom and the capacity to make a choice of whether
or not to do so. This is entirely consistent with the respect for autonomy in
matters of private life which is guaranteed by art. 8 of the European
Convention …’
27. When challenged on her submission Ms Green modified it to the proposition
that the evidence sought to be elicited would bear on the credibility of the
complainer, rather than directly on the events themselves. This, it appeared to me,
would mean that it was evidence of the kind discussed in CJM v HM Advocate 2013
SCCR 215 at paragraph [29]. On this basis the application seeks authority to admit
evidence which has no direct or indirect connection with the facts in issue, but may
conceivably affect the weight to be attached to testimony which does have direct
relevance to the facts, in this case the testimony of the complainer as to the absence of
consent on the occasion specified in the charge.
28. The weakness in the argument advanced is however obvious from the terms
of part 4 of the application. That part is headed ‘The reasons why the evidence is
considered to be relevant are as follows:’ The explanation of the relevance of the
evidence sought to be elicited in paragraph 1g), as given, is this:
‘That the complainer's willingness to have sexual intercourse with the
accused in his vehicle some hours after the alleged rape in his home, tends to
support the position that the complainer consented to the intercourse in his
home. This is particularly so given that the complainer was in possession of
her car keys and was in a position to leave the accused and drive herself
home.’"
[59]       It will be seen that the ultimate basis upon which the evidence was said to be
relevant is not dissimilar to the proposition in Oliver that apparently consensual sexual
activity shortly post-incident was capable of undermining the complainer’s credibility
regarding the earlier incident, on the basis that it would seem unlikely that the subsequent
activity would have taken place had a non-consensual incident occurred shortly before.
[60]       His Lordship however distinguished Oliver on the basis that the evidence of what
was said to have happened in that case was not in dispute, and so was readily established,
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27
thus it did not run the risk of diverting attention to extraneous matters. He also relied upon
what was said in Thomson.
[61]       The other element of JW where the decision departed from Oliver was in relation to
the alleged intimation in advance of a desire by a complainer to indulge in sexual activity
with the appellant. The application sought to lead evidence of communications between the
complainer and appellant in the days before the alleged incident, in which reference was
made to the complainer’s preference for a particular sexual activity. Noting that GW v
HM Advocate 2019 JC 109 requires consent is to be given, in whatever form, at the time of the
sexual act and not at a point remote from it. Lord Turnbull stated (para 19) that
“If consent cannot lawfully be issued in advance, the question of consent in relation
to the sexual act between the accused and the complainer specified in the charge
cannot be illuminated, or determined to any extent, by prior expressions of interest
in sexual conduct with the accused, or by expressions of interest in any particular
type of sexual activity.”
[62]       He did not consider the evidence of the communications to be relevant. In para 25,
he made reference to the decision in Oliver (in respect of complainer B, as noted above) and
indicated that insofar as his own decision conflicted with Oliver, he had relied upon what
had been said by the court in Thomson.
[63]       JW ([2020] HJC 11) is now reported as HM Advocate v JW 2020 SCCR 174. The report
contains the following coda:
“[38] The Lord Justice General sitting with Lords Brodie and Pentland on
27 February 2020 considered an appeal in relation to this opinion. The court’s
decision was recorded as
‘having heard counsel for the appellant and the advocate depute in reply,
agreeing with the terms of the report to this court by the judge at first
instance, affirmed the decision of the court at first instance, refused the
appeal and decerned.’”
Page 28 ⇓
28
[64]       It is appreciated that the arguments advanced in this case are subtly different from
those in Oliver since in this case there is no special defence of consent and it is not being
maintained that the relevance of the evidence lies in the bearing it may have on the question
of consent at the time of the charge. Furthermore, whereas in the present case the alleged
sexual behaviour, and the issue of its common law relevance, is disputed, that was not the
position in Oliver. In that case there was no dispute that the behaviour had occurred, so it
could readily be established. There was in fact an explanation being offered to account for
the behaviour. In addition, the Crown did not dispute that the evidence was admissible at
common law, so the only issue which the court proceeded to address related to the statutory
test. These were some of the factual differences which led Lord Turnbull to feel able
(para 30) to distinguish Oliver in his decision in JW. As he noted, all cases of this kind are to
some degree fact specific. There are in my view several difficulties with the approach
adopted in Oliver. If evidence of conduct some weeks after an alleged incident is not
capable of throwing light on the question of consent at the time of the alleged incident, (as
the court in Oliver determined) what is the basis for saying that such evidence is capable of
throwing light on the issue if it relates to something which happened within a day or so? In
each case the argument is essentially the same, namely that evidence of a subsequent
consensual act is capable of bearing on the question whether a prior act was consensual. I
fail to see how this can be other than collateral. Moreover, any general relevance that it may
have is so weak and remote that it cannot be said that it would have significant probative
value or outweigh the risk to the administration of justice from its admission, specifically in
respect of safeguarding the dignity and privacy of a complainer. I agree entirely in this
respect with the observations of Lord Turnbull in paras 27- 29 of JW.
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29
[65]       The other aspect of Oliver which gives rise to concern is the suggestion that
communications in which a willingness to engage in sexual intercourse at some time in the
future was expressed may be relevant to the question whether, on an entirely different and
subsequent occasion, such consent was in fact given. This seems to me to be entirely
inconsistent with GW and I again agree with Lord Turnbull in JW.
[66]       In both LL (para 14) and SJ (para 77) the court took care to say that it was not
suggesting that a previous sexual encounter could never be relevant, and took some care to
explain the circumstances which might be expected if relevance was to be established. At
para 14 of LL the court said:
“That is not to say that there may never be cases where a previous act of intercourse
might not be relevant to the issue as to whether the complainer consented on a
subsequent occasion or to the issue of whether an accused reasonably believed that
the complainer was consenting. However, in such a case particular circumstances
would have to be averred to demonstrate what was said to be the connection
between what we would see as, prima facie, unrelated events. Here there are no such
averments.”
[67]       The key lies in the basic concept of relevance as discussed in detail in CJM and also
in para 13 of LL- “not every fact that has some conceivable connection, however distant,
with the facts in issue is a relevant matter for enquiry”. As Lord Pentland put it in SJ (para
77):
“It all depends on the degree of connection in the particular circumstances of the
case.”
The fact remains that the test for either post or pre charge conduct remains the same: that it
will only be relevant if it has a reasonably direct bearing on a fact at issue in the trial, in the
sense of making that fact more or less probable. In the course of debate the Advocate
Depute gave an example of evidence which might be relevant to provide an alternative
explanation for injuries or for the presence of scientific evidence, such as DNA. One can see
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30
that these may be circumstances in which prior or subsequent sexual activity within a very
short time frame may be considered relevant, but, as noted in LL the particular
circumstances would have to be averred to demonstrate the connection between what are,
prima facie, unrelated events.
The current application
[68]       The current application seeks to permit evidence that some hours prior to the alleged
incident, before the appellant and complainer had gone out for the evening, the complainer
consented to sexual intercourse with the appellant, and again did so the following morning.
On the face of it, this is a collateral issue. The libel is one of having intercourse with the
complainer whilst she was intoxicated and thereby unable to give consent. As the
preliminary hearing judge noted, it does not appear relevant to that issue to show that the
complainer may have consented to have sexual intercourse with the appellant, while not
intoxicated, on other occasions.
[69]       According to the terms of the submission, the appellant wishes to tell the jury that he
did not have intercourse with the complainer when she was drunk and incapable of
consenting but rather the couple had consensual intercourse on three other occasions when
she was perfectly sober: twice before a night out during the 48 hours they were in each
other’s company and once afterwards.
[70]       The appellant wishes to lead this evidence “to rebut” the complainer’s allegation that
he had sex with her whilst she was drunk and incapable of consenting. He seeks to do so by
leading evidence that on other occasions, when she was neither drunk nor incapable of
consenting, the two had consensual sex. It is said that the situation is different from cases
such as LL and SJ since the issues do not relate to consent but to whether the incident
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31
happened at all. I do not see that this advances the matter: it is still necessary to identify in
what way the evidence of those other occasions is relevant to an issue in dispute at the trial,
and capable of helping the jury resolve that issue. Examining the submissions with care, I
cannot see that the evidence has this quality. Incidents of sober, consensual sex on other
occasions would not be capable of “rebutting” the complainer’s evidence as to the charge
libelled. Evidence of consensual sober sex on other occasions is prima facie irrelevant to the
question whether non consensual sex occurred on another occasion when the complainer
was drunk and incapable of giving consent. Assuming for the moment the disputed
assertion that consensual sex did take place on these other occasions, this would shed no
light on the question whether at the time of the libel, the appellant acted in the way alleged.
It is not therefore evidence “relevant to establishing whether the accused was guilty of the
offence with which he is charged”.
[71]       In any event, it is not accepted that consensual sex occurred on these other occasions:
this is a matter entirely in dispute. Essentially the appellant seeks to lead evidence of
another matter in dispute between himself and the complainer to seek to persuade the jury
that his version of a separate matter in dispute is to be preferred. Dr Johnson could not
devise a better definition of a collateral matter.
[72]       Even if the evidence had been admissible at common law, it would be prohibited
under the statute. In this context it is worth referring to the appellant’s reasons for asserting
that the evidence is relevant to an issue at trial and should be admitted. The first is his claim
that he is repelled by the smell of alcohol and that he would not have intercourse with
anyone smelling of alcohol. The possibility that the appellant had intercourse with the
complainer when she was sober and not smelling of alcohol does not give, and is itself not
capable of giving, rise to an inference that he would not have done so had she been smelling
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of alcohol. It is only the evidence of the appellant that he would not have done so which
would be capable of allowing that inference, and that is evidence he would be perfectly
capable of giving without the current application. Equally, he would be entitled to lead
evidence from others, who from intimate connection with him, know the smell of alcohol to
be repulsive to him. It is not at all necessary to the placing of such evidence before the jury
that the matters referred to in the application be admitted in evidence, or that the
complainer be asked whether, on other occasions she had consensual intercourse with the
appellant.
[73]       I do not fully understand the submissions that the evidence in question was
admissible as demonstrating the complainer’s character. Allowing for the “invisible
comma” (HMA v MM 2005 1 JC 102), section 275 (1) allows consideration of evidence of a
specific occurrence or occurrences of sexual behaviour, or of specific facts demonstrating,
inter alia, the complainer’s character. It is the former, not the latter which arises in this case.
I cannot see how the evidence in question may reflect on the complainer’s character in any
event, even if it may have some remote bearing on credibility. As Lord Rodger of Earlsferry
pointed out in DS v HM Advocate 2007 SC (PC) 1 para 78,
“Plainly, the evidence is not admitted simply for its bearing on the credibility of a
complainer as a witness. If that had been the legislature’s intention, it would have
spelled it out”.
The heart of the argument in the present case is little more than the submission that the jury
should be presented with the “full picture” of relations between the parties, an argument
which was rejected in both SJ and LL.
[74]       In relation to the incident libelled, apart from the references to consensual acts of
intercourse the appellant asserts in para 1(a) of the application, inter alia that after a night out
he and the complainer returned to his home. She was intoxicated and “came on to him
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33
because she had been drinking and was behaving in a disinhibited manner”. He refused to
engage in sexual activity with her and she became annoyed and frustrated at this. On its
own, the fact that a complainer was intoxicated is not something which would obviously
require an application under section 275. However, the likelihood is that the jury would not
simply be presented with the fact of intoxication, but would be asked to draw certain
inferences from this. It may be that those inferences would be such as would require an
application. In the present case the assertions are combined: not just that she was drunk but
that because she had been drinking she “came on to” the appellant, and was acting in a
“disinhibited”, presumably sexual, manner. In the absence of specification it is not clear
what this involved, but both this behaviour and her apparent disinhibition appear to be
combined to suggest some sort of sexual advance to the appellant which he rejected. The
issue of the complainer’s intoxication cannot be separated from this allegedly sexual
behaviour. If I have correctly understood the import of the proposed evidence it does in my
view require an application and I reject the submission for senior counsel that these matters
can be separated out from each other in some way. The Advocate Depute was wrong in my
opinion to suggest that this evidence did not require an application because it was merely
the appellant’s account of the subject matter of the charge. The position is correctly stated in
the Preliminary Hearing Bench Book that unless a particular type of sexual conduct is
libelled within the charge it cannot be the subject matter of the charge. The legislation states
that an application is required for any behaviour “not forming part of the subject matter of
the charge”. It does not say “any behaviour not occurring at the time of the charge” or any
other possible wording. The wording of the statute is firmly tied to the wording of the libel.
In the present case, I do not think that it would be appropriate for this court to grant the
application limited to this part of it, for several reasons. First, because the material is, in the
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34
application tied in very much with the wider aspect of evidence for which the appellant
sought permission. Second, because of the lack of specification as to the alleged behaviour.
Third, because the application does not properly address section 275(3) in appropriate detail
in respect of this evidence. However, I would not see the decision in this case as precluding
a further, properly drawn application restricted to this matter.
[75]       I have had the advantage of reading the opinion of Lord Turnbull with whose
observations I am in agreement, thus differing from the views expressed by Lord Glennie.
In the first place, I agree with Lord Turnbull about what constitutes the res gestae. As his
Lordship notes, in Cinci v HMA 2004 JC 103, the Lord Justice Clerk (Gill) stated (para 9) that
the res gestae principle is founded on the idea that the words spoken are “part of the event
itself”. If the words, “though closely related to the event, are not part of the event” they
cannot be treated as part of the res gestae (para 12).
[76]       As to R v A , in respect of which I also agree with Lord Turnbull, there are three
preliminary issues worth noting. The first is that the legislation being construed was not in
the same terms as the rape shield provisions of the 1995 Act. The exclusionary provisions in
England amounted to a blanket ban which on the face of it extended to evidence of a
relationship of cohabitation, and to other categories of evidence as to sexual relations
between the defendant and complainant which would otherwise meet the test of relevancy,
unless they fell “within an extraordinarily narrow temporal restriction” (Lord Steyn,
para 40). That is not the case with the Scottish legislation. In Moir v HMA, 2005 JC 102 the
Lord Justice Clerk (Gill, with whom the other judges agreed) considered that the terms of
section 274 would not exclude evidence of cohabitation, even before taking into account the
need to reflect section 3 of the Human Rights Act 1988. Other evidence of specific acts may
be admitted if relevant to establishing whether the accused is guilty of the offence with
Page 35 ⇓
35
which he is charged, may be admitted, so long as the requirement of having sufficient
probative weight are met. In my view this is entirely consistent with the way in which the
House of Lords determined that the English legislation required to be interpreted.
[77]       The second is that the observations in R v A were made in the context of the
relevance which the evidence in question might have to the issue of consent, which is an
issue which simply does not arise in the present case. It seems that what the appellant seeks
to do would in fact be prevented by the approach adopted in R v A: see Lord Hope, at
para 95:
“A prohibition of evidence and questions about the complainant’s sexual behaviour
on other occasions whose purpose, or main purpose, is to elicit material to impugn
the credibility of the complainant as a witness seems to me to strike the correct
balance. If the sole purpose is to impugn credibility, the defendant has no rights in
the matter at all. The complainant’s sexual behaviour on other occasions is irrelevant.
No inferences can properly be drawn about her credibility from the mere fact that
she has engaged in sexual behaviour on other occasions.”
[78]       The third point about R v A is that the issues in the case were, of necessity, discussed
at a high degree of generality, without specifying the applicable test for relevancy of
evidence. That was no doubt partly because the terms of the application related to the bare
assertion of his previous sexual relationship with the complainant, and without more detail,
of the kind which I have referred to above as being necessary for the court to make a proper
assessment under section 275. The appellant was given the opportunity to renew (and
expand upon) his application before the trial judge, for a decision on the merits. It is difficult
to see that the application as stated could be viewed as relevant. As Lord Hope noted,
para 105, the mere fact that the complainant had consensual sexual intercourse with the
accused on previous occasions was not relevant to the issue whether she consented to
intercourse on the occasion of the alleged rape.
Page 36 ⇓
36
[79]       The decision in R v A was simply that a prior consensual sexual relationship
between a complainant and the defendant might, in the circumstances of an individual case,
be relevant to the issue of consent, with the result that the Article 6 rights of a defendant
would be breached were he denied the admission of relevant evidence where its absence
would endanger the fairness of the trial under article 6 (Lord Steyn, para 46). If evidence is
of such a quality, it follows that it is plainly evidence which bears directly on a central
question in the case, in particular the question of consent. If it did so, it would meet the test
of relevance applied to 1995 provisions. If it did not do so, it would be irrelevant, whether
under the legislation in England and Wales, as interpreted in R v A, or whether under the
1995 Act.
[80]       The observations by Lord Steyn at para 32, that “there was broad agreement that
such evidence is sometimes relevant (e g an ongoing relationship) and sometimes irrelevant
(eg an isolated episode in the past), with the comment that an accused should be able to
advance “truly probative material”(para 45) , are again consistent with the approach taken
to the 1995 provisions, which do not exclude truly probative material: all that is required of
the accused is to satisfy the court that the material falls into such a category in the
circumstances of the case. Material which related to an isolated incident, distant in time and
circumstances, described in R v A as irrelevant, is equally unlikely to meet the test of
relevancy applied to the provisions of the 1995 Act.
[81]       In conclusion therefore, in my view the evidence relating to alleged consensual
activity on other occasions is not admissible at common law as being collateral. Even if it
were admissible at common law, it would be prohibited by statute and could not be brought
within any of the permitted exceptions. The appeal should therefore be refused.
Page 37 ⇓
37
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Glennie
Lord Turnbull
OPINION OF LORD MENZIES
[2020] HCJAC 43
HCA/2020/8/XC
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CH
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: M Jackson, QC; BastenSneddon
Respondent: A Cameron, AD, Sol Adv; Crown Agent
13 October 2020
[82]       I agree with the Lord Justice Clerk that the evidence sought to be led in this case
relating to alleged consensual activity on other occasions is collateral, and not admissible at
common law. It follows that issues under s 275 of the 1995 Act do not arise. I agree that the
appeal should therefore be refused. However, I should like to make some brief observations
about the decision of the court in Oliver v HM Advocate [2019] HCJAC 93, and how that case
may relate to the present appeal.
Page 38 ⇓
38
[83]       I consider that the Advocate Depute was correct (as mentioned above at para [33]) to
submit that sexual behaviour in the aftermath of an alleged incident was likely to be
irrelevant, but one could not say that it would never be relevant there is no hard-edged
rule, since cases are fact specific. However, I do not accept that the court in Oliver set out or
endorsed the proposition that if a woman consents to sexual activity with the accused a day
or two, or longer, (emphasis added), after an alleged sexual assault or rape this could affect
her credibility. At para [9] of the opinion in Oliver the court stated that “in general terms,
the fact that a complainer has consented to sexual activity on previous occasions does not
make it more or less likely that he/she will consent to sexual activity on a subsequent
occasion. It follows, we think, that it will rarely be relevant to lead evidence that a
complainer has consented to sexual activity on an occasion sometime before the events
libelled. However, it appears to us that the situation may be different in relation to material
concerning actions by a complainer in the immediate aftermath of an alleged event. We
emphasise the words “immediate aftermath”; we have in mind a period of hours, or perhaps
a day or two, following an alleged event.”
[84]       First I would observe that the court deliberately used the words “the situation may
be different” – not, as submitted by counsel for the appellant in the present appeal would
be relevant”. It is clear from Oliver that the court recognised that there was no hard-edged
rule, and that cases are fact specific. Oliver is not authority for the proposition that any
evidence of events occurring within the immediate aftermath will be relevant.
[85]       Secondly, the court in Oliver expressly stated that it had in mind when using the
term “immediate aftermath” a period of hours, or perhaps a day or two. It did not have in
mind, as the Advocate Depute suggested in the present appeal, a period of a day or two “or
longer”. On reflection I have come to the view that the words “perhaps a day or two” may
Page 39 ⇓
39
cause a misapprehension that a longer period might be relevant. I have reached the
conclusion that these words, even prefaced as they were by “may” and “perhaps”, are
neither necessary nor appropriate, and for my part I have concluded that “the immediate
aftermath” should be reckoned in hours, not days.
[86]       Moreover, it is important to take account of the factual circumstances in Oliver, and
the position adopted by the Crown in that appeal. The Crown accepted in that case that the
complainer continued to stay with the appellant and had consensual sexual intercourse with
him in the immediate aftermath of the alleged incident. Accordingly there was little risk
that the jury would be distracted by an exploration of evidence of a collateral matter which
was itself a disputed issue there was no dispute on the facts of the collateral material.
Moreover, the Crown did not challenge the relevancy at common law of this material, but
confined its submissions to the statutory tests in section 275. That is quite different from the
situation here, where the appellant’s allegation of consensual sexual intercourse some hours
after the alleged event is disputed by the complainer, and the Crown is challenging the
relevancy of this material at common law. These are important distinctions.
[87]       It is only necessary to consider the statutory tests in s 275 of the 1995 Act if the
evidence which is sought to be led is admissible at common law. “The starting-point for a
decision on whether or not this evidence is admissible is the general principle that evidence
is only admissible if it is relevant…. The determination of whether a fact is relevant depends
very much upon its context and the degree of connection between what is sought to be
proved, or disproved, and the facts libelled” – CJM v HM Advocate 2013 SCCR215, per LJC
(Carloway) at para [28]. “The general rule is that it is not admissible to lead evidence on
collateral matters in a criminal trial” – Brady v HM Advocate per LJC (Ross), to which LJC
Carloway referred at para [32] of CJM. See also Lord Menzies at paras [55] & [56] of CJM
Page 40 ⇓
40
”….it is a general rule of Scots law that evidence of a collateral fact in a criminal trial is
inadmissible, subject to an exception relating to instantly verifiable material, which cannot
be challenged”.
[88]       In the present case the appellant seeks to give evidence that the complainer had
consensual sexual intercourse with him some hours after the event libelled. The complainer
denies this. This is about as far from “instantly verifiable material which cannot be
challenged” as it is possible to imagine. If allowed, it would give rise to a real risk that the
jury would be distracted from the central issue, namely whether or not the appellant
committed the crime libelled, and would focus on the collateral matter, namely whether or
not the appellant and the complainer had consensual sexual intercourse the following
morning.
[89]       For these reasons I consider that this material is not admissible at common law, and
it is not necessary to go on to consider the statutory tests in s 275. I would refuse this
appeal.
Page 41 ⇓
41
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Glennie
Lord Turnbull
OPINION OF LORD GLENNIE
[2020] HCJAC 43
HCA/2020/8/XC
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CH
against
HER MAJESTY’S ADVOCATE
Appellant: M Jackson, QC; BastenSneddon
Respondent: A Cameron, AD, Sol Adv; Crown Agent
Appellant
Respondent
13 October 2020
[90]       I am grateful to your Ladyship for setting out the issues in this appeal and for
summarising the evidence sought to be adduced by the accused and the basis upon which
he seeks to justify its admission, as well as the statutory framework and decided case law
against which this appeal falls to be decided. I regret, however, that I am unable to agree as
to the result. For my part, I would hold that the evidence sought to be adduced is directly
relevant to the issues raised in the libel; that it satisfies the requirements of section 275(1) of
Page 42 ⇓
42
the Criminal Procedure (Scotland) Act 1995; and that it should be admitted at trial. I shall
endeavour to set out my reasons for coming to this view as briefly as possible.
[91]       The first question to be decided is one of admissibility at common law, i.e. whether
the evidence is relevant to the issues raised in the libel and whether, despite its relevance to
the issues in the case, it falls to be excluded as collateral. This has to be decided before any
question falls to be considered under sections 274 and 275 of the 1995 Act.
[92]       Four general points can usefully be made at this stage. First, the question of
relevancy falls to be determined at common law. There is no statutory definition of
relevancy. The common law on this issue is founded, as one would expect, upon logic and
experience, and broadly coincides with common sense: CJM v HMA 2013 SCCR 215 at
para [28], LL v HMA 2018 JC 182 at paras [13] and [14]. Second, even at common law
relevant evidence was not always admissible. It could be excluded if it was “collateral”. To
label evidence as “collateral” is not to say that it is irrelevant; rather it denotes that, although
it may be relevant, the evidence is excluded for reasons of expediency and practicality.
Third, the test of whether evidence is relevant, and if so whether it should be excluded at
common law as collateral, ought to be the same regardless of whether the charge is of a
sexual offence or is of some non-sexual crime, and regardless of whether or not the
particular piece of evidence under consideration is of a sexual nature. Fourth, it was the
clear intention of the legislature in enacting sections 274 and 275 of the 1995 Act to exclude
certain evidence in particular some evidence of prior sexual activity with the accused (and
with others) which might otherwise be regarded as of direct relevance and therefore
admissible at common law. The policy objectives underpinning the relevant legislation are
well known. It should not, therefore, be regarded as surprising that as a result of the
introduction of sections 274 and 275 of the 1995 Act a considerable body of evidence which
Page 43 ⇓
43
would otherwise have been admitted at common law as both relevant and not collateral is
now excluded. There would have been no need for the legislative changes were it
otherwise. Yet the approach now adopted appears to proceed upon the assumption that all
or almost all such evidence is now to be excluded on the basis that it is irrelevant or
collateral. This approach, if correct, raises the question why there was any need for the
legislature to intervene in the first place: see per Lord Malcolm in SJ v HM Advocate 2020
SCCR 227 at para [20].
[93]       Before dealing with the particular circumstances of the present case, it is instructive
to consider the question of relevancy in the context of a typical case, where the issue is about
consent and the accused wishes to adduce or elicit evidence of prior consensual sexual
relations with the complainer. The approach of the courts in recent cases has been that, as a
general rule, such evidence is irrelevant. The point has been expressed in the most
forthright terms in Oliver v HMA [2019] HCJAC 93 and in Lee Thomson v HMA (unreported,
13 December 2019, HCA/2019/000517/XC). Thus, in delivering the opinion of the court in
Oliver, Lord Menzies said this (at para [9]):
“In general terms, the fact that a complainer has consented to sexual activity on
previous occasions does not make it more or less likely that he/she will consent to
sexual activity on a subsequent occasion.”
And in Lee Thomson, the Lord Justice Clerk, delivering the opinion of the court, said that:
“… the fact that a person may have consented to sexual activity on one occasion has
no bearing at all on whether they consented on another occasion, either before or
after the incident in question, save possibly, in particular circumstances, in the
immediate aftermath.” (emphasis added)
As Your Ladyship points out, under reference to cases such as LL (at para [14]), the court has
sometimes been at pains to point out that it was not suggesting that a previous sexual
encounter could never be relevant to the question of consent. But instances where that
Page 44 ⇓
44
evidence might be relevant are clearly to be regarded as exceptional; particular
circumstances would have to be averred to demonstrate a link between prima facie
unrelated events” (LL at para [14]).
[94]       Dealing with the matter solely on the issue of relevancy and putting to one side for
the moment (i) the question of whether such evidence would be regarded as collateral and
(ii) the statutory barriers to the admission of such evidence such an approach is, to my
mind, contrary to logic, experience and common sense. Evidence of a prior sexual
relationship between the complainer and the accused may well be relevant to the issue of
consent, quite apart from it being relevant to the related issue of reasonable belief in consent.
It may inform and explain the likely conduct of one or both parties. It may throw light on
the complainer’s state of mind.
[95]       In his opinion in SJ, with which I agree, Lord Malcolm referred at paras [16] and [17]
to the speeches in the House of Lords in R v A (No.2) [2002] 1 AC 45, and quoted a brief
passage from the speech of Lord Steyn. That case sought to answer the question whether a
prior sexual relationship between the accused and complainer could be relevant to the issue
of consent so as to render its exclusion under certain statutory provisions a contravention of
the defendant's right to a fair trial. The question of whether such evidence was potentially
relevant was thus directly in point. In the course of their speeches, all members of the
House accepted, to a greater or lesser extent, that evidence of such a relationship might well
be relevant to the issue of consent. This view was supported both by the relevant literature
on the subject at the time and by the conclusions of the 1975 Heilbron Report (Cmnd 6352).
The reasoning is obvious and straightforward. Evidence of the prior relationship supplies a
part of the context, sometimes an important part, in which the evidence from the complainer
as to what she said or did falls to be assessed. Just as no one has ever made an acontextual
Page 45 ⇓
45
statement (Marley v Rowlings [2015] AC 129 at para 20, citing Lord Hoffman in in Kirin-
Amgen Inc. v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, at para 64), so also no-one has
done an acontextual act or given or withheld consent acontextually, as in a vacuum.
[96]       I fully appreciate that R v A (No.2) was decided nearly 20 years ago and that the
Heilbron Report which influenced the House in that case was over 40 years ago. Times
change, and perceptions change with time. This is particularly true of the approach to the
admissibility of otherwise admissible evidence which underpins the current legislation
(sections 274 and 275 of the 1995 Act) restricting, for good reason, the admissibility of
evidence of the complainer’s past sexual conduct. But the legal question of what evidence is
relevant and what is not relevant is a different question from that of whether a particular
line of evidence, which is admittedly relevant, should be excluded. That legal question of
relevancy has not changed so dramatically as to render evidence which was regarded as
potentially relevant under 20 years ago now completely irrelevant. I do not suggest that
evidence of prior consensual sexual conduct between the complainer and the accused will
always be directly relevant to the issue of consent on the occasion narrated in the libel
obviously it will sometimes not be relevant but I do suggest that, contrary to general
assertions in cases such as Oliver and Lee Thomson, such evidence will often be relevant to
that issue; and that the relevance of such evidence should be a matter of proper
consideration in each case, without any predisposition to hold it to be irrelevant unless,
exceptionally, the accused was able to point to particular circumstances making it of
relevance in the particular case. How relevant a piece of evidence may be, whether that
evidence relates to sexual activity or some other matter altogether, will, of course, always
depend on the facts of the particular case. In any trial for a non-sexual offence it is
commonplace for the crown to lead evidence of the surrounding circumstances leading up
Page 46 ⇓
46
to the alleged offence. It provides the background, the context, against which what
happened subsequently can be understood. I have never heard any objection to that course
on grounds of relevancy. So too in a trial for an alleged sexual offence evidence is
commonly led by the crown, without objection, as to how the parties met and what
happened thereafter. Is a different test of relevancy to be applied just because the defence
wish to adduce such evidence and that evidence will include evidence of sexual intimacy
during that period? A long-lasting sexual relationship in the period leading up to the
alleged incident is likely to throw light on the circumstances of the incident itself. So too
might a weekend of heightened sexual activity between the parties in the lead up to the
alleged incident be relevant to an understanding of what really happened at the particular
moment complained of in the libel. By contrast, a single sexual encounter between the
complainer and the accused occurring many months or even years before the incident
libelled may be considered of only marginal, if any, relevance, unless some particular link is
averred. There are, no doubt, many examples lying between these extremes. In my view
cases where such evidence should be excluded because it is genuinely not relevant will be
relatively uncommon. The necessary gatekeeping exercise, designed to ensure the policy
objective of preventing the admission of unnecessary and humiliating evidence about a
complainer’s private, intimate and sexual history, is better served by the proper application
of the statutory tests in sections 274 and 275 of the 1995 Act than by adopting an approach to
relevance which parts company with logic and common sense.
[97]       I turn briefly to consider the question of whether and in what circumstances,
evidence which is otherwise relevant should be excluded because it is to be regarded as
“collateral”. It is sufficient for this purpose to refer to the opinion of the Lord Justice Clerk
in CJM v HMA 2013 SCCR 215 at paras [27] [35]      . The evidence under consideration in that
Page 47 ⇓
47
case had no direct connection to the events set out in the libel. The defence wanted to lead
evidence that some considerable time earlier the complainer had made a false complaint of a
sexual nature. Such evidence would, it was claimed, potentially undermine the
complainer’s evidence relating to the events in the libel by showing her to be dishonest, to
have made things up in the past. The court held that that evidence had no direct or indirect
connection with the facts in issue, but might conceivably affect the weight to be attached to
testimony which does have direct relevance to the facts. To that extent it might be regarded
as relevant; but it should be excluded as “collateral”, having only an indirect bearing on the
matter, and being likely (since the evidence of a previous false allegation was disputed) to
lead to disproportionate and unhelpful investigation into this separate issue and running the
risk of distracting the jury from the real issues in the case.
[98]       I have no difficulty with the proposition that evidence which is truly collateral in the
sense of being removed from and bearing only indirectly on the real issues in the case can be
excluded as collateral. I have no difficulty with the decision in CJM. But there is a danger of
taking this too far, and excluding potentially relevant evidence of events surrounding the
incident forming the subject matter of the libel, and thereby disembodying the case before
the jury. Evidence which has a reasonable and direct bearing on the subject matter of the
libel should not be excluded as collateral simply because it is disputed. Except to the extent
excluded by statute, the jury should have before it all the evidence directly relating to the
events of the libel, and that includes all evidence showing how the complainer and the
accused came to be in the situation in which the offence is said to have been committed and
the events immediately following upon that alleged offence. It is arguable that such
evidence forms part of the res gestae; but, whether or not that is formally correct, it is
evidence which at least places the alleged incident in its proper context, and should not be
Page 48 ⇓
48
excluded as collateral. Were it not so, it would give licence to the Crown to set the agenda
for the trial and to narrow the libel so as to exclude the possibility of the accused giving his
account of what he says really happened.
[99]       Returning to the facts of the typical complaint, where the issue is one of consent and
the disputed evidence relates to sexual intimacy between the complainer and the accused in
the lead up to the incident libelled, I fail to see how such evidence can be dismissed as
irrelevant or collateral. As was said in R v A (No. 2), excluding such evidence will leave the
jury in the dark as to how the individuals concerned came to be in the position they were in,
and unaware of factors which might have influenced the decisions they may have made. In
every case, whether sexual of not, evidence of how the parties came to be where the incident
occurred will be relevant at common law (and therefore admissible unless excluded by the
statutory safeguards). This decontextualizing of the evidence presents a real risk of
injustice, whether for the complainer or for the accused.
[100]       In the same way, I fail to see how conduct alleged to have occurred in the immediate
aftermath of the alleged incident can be excluded as irrelevant or collateral. It is well
accepted that evidence of distress shown by a complainer soon after the alleged incident can
shed light on her complaint that the sexual encounter with the accused was non-consensual.
I have never heard of such evidence being excluded as collateral just because it is or may be
in dispute. In my view evidence of the absence of any sign of distress must be equally
relevant. There cannot, at common law, be one rule for the complainer and another for the
accused. Nor should evidence of the complainer and the accused being on friendly terms
shortly after the event libelled be rejected as collateral just because the only witnesses to
some or all of that alleged friendliness are the complainer and the accused, with the result
that the evidence may be disputed. And in terms of whether the subsequent events are
Page 49 ⇓
49
relevant, and separately whether they are collateral, it should make no difference that the
subsequent friendliness which the accused says occurred included a further instance of
consensual sex. The evidence is directly relevant in time, place and circumstance and
should be heard.
[101]       The present case is not the typical consent case. In this case the accused says that the
offence libelled simply did not happen. But he admits that he and the complainer had sex,
and on more than one occasion. He wants to give his account of what happened in that
short time span of no more than about 12 hours when he and the complainer, who had met
on Facebook, met in real life for a date. On his account they had consensual sex twice before
going out with the friend (A) who had introduced them, went back afterwards to his place
(where the complainer drunkenly “came on to him”), and had sex again in the morning
before the complainer left. There was no sex in between times. There was no sex when the
complainer was too drunk to consent. He did not tie her up in any way. He refused to have
sex when she was drunk and “came on to him”. That is his account. It is all part of the res
gestae. If he is believed in his overall account of their date, the jury may find it difficult to
accept the complainer’s account. If the jury accept that they had sex in the morning soon
after the alleged rape, then they might ask themselves whether this is throws any light on
her account that he had raped her not long before. It is too closely tied in with the
circumstances surrounding the events set out in the libel to be dismissed as irrelevant or
collateral. If he is required to give his account by removing all references to the two of them
having had sex on these three occasions (the last occasion being after the alleged rape) there
is a danger that the jury is simply not going to understand his account of what was going
on. They might not understand the complainer’s account either. They might not
understand what the complainer was doing there at the time of the alleged offence. They
Page 50 ⇓
50
may be tempted to speculate. Presumably the jury will be given some disembodied agreed
narrative. But it is unlikely to be adequate; and it will give rise to a serious risk of injustice,
one way or the other.
[102]       I would hold that the proposed evidence is relevant at common law and should not
be excluded as collateral.
[103]       So I turn to consider the statutory test. The evidence prima facie excluded by the
terms of section 274 of the 1995 Act. That brings into play the question of whether it should
be admitted under section 275. I would hold that all three paragraphs of section 275(1) are
satisfied. The evidence and questioning will relate only to specific occurrences of sexual
behaviour demonstrating the complainer’s character on the night in question. Those
occurrences are relevant to establishing whether the accused is guilty of the offence charged.
And the probative value of the proposed evidence is significant and likely to outweigh any
risk of prejudice to the proper administration of justice as defined in sub-section (2). In
those circumstances the evidence should be admitted.
[104]       I would allow the appeal.
Page 51 ⇓
51
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Glennie
Lord Turnbull
OPINION OF LORD TURNBULL
[2020] HCJAC 43
HCA/2020/8/XC
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CH
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: M Jackson, QC; BastenSneddon
Respondent: A Cameron, AD, Sol Adv; Crown Agent
13 October 2020
[105]       I agree entirely with the analysis set out in the opinion of the Lord Justice Clerk. The
evidence sought to be led in this case relating to alleged consensual activity on other
occasions is irrelevant to the issues in the case. It is at best collateral and not admissible at
common law. In light of some of the issues canvassed by Lord Glennie in his opinion, and
the importance of the matters which they raise, I would wish to make some further
observations of my own. I propose to do so under the headings of res gestae, the relevance of
the proposed evidence and the application of section 275 of the 1995 Act.
Page 52 ⇓
52
Res gestae
[106]       As I understand the view arrived at by Lord Glennie, he would admit the proposed
evidence as relevant, partly at least, on the view that the appellant’s overall account of the
events during the 12 hours when he and the complainer met for a date is all part of the res
gestae. As I would understand the law on the admissibility of evidence as part of the res
gestae, what matters is whether or not the evidence concerned “is part of the whole thing
that happened” – see Walker and Walker The Law of Evidence in Scotland 4th edition at
paragraph 8.5.1.
[107]       In the case of Cinci v HM Advocate 2004 JC 103 the court held that the relevant event,
or the whole thing that happened, was the act of intercourse between the complainer and
the appellant. The “event” which mattered was the alleged rape. Anything said after the act
of intercourse had finished could not comprise part of the res gestae. In the subsequent case
of O’Shea v HM Advocate 2015 SCCR 66 at paragraph [37] the Lord Justice Clerk (Carloway)
emphasised that the critical determining feature is whether the statement (in that case) is
part of the event itself.
[108]       The event itself in the present case is the act of intercourse said to have taken place as
specified in charge 3. The res gestae cannot, in my opinion, include events which occurred
many hours before or many hours afterwards. I do not read in Lord Glennie’s opinion any
explanation as to how his approach to res gestae sits with the law as explained in the relevant
textbooks and relatively recent decisions of the court. I think it would be unfortunate if
practitioners and judges were to be introduced to a parallel and ungoverned concept of res
gestae which sits alongside, but in competition with, the traditionally understood aspect of
this part of the law of evidence.
Page 53 ⇓
53
The relevance of the proposed evidence
[109]       The background to the legislative restrictions on the leading of evidence to be found
in sections 274 and 275 of the 1995 Act, and the history of failed attempts to secure that
interest, was set out by the Lord Justice Clerk (Gill) in the case of M(M) v HM Advocate 2005
1 JC 102 and touched upon again by the Lord Justice Clerk (Carloway) in CJM v
HM Advocate 2013 SCCR 215. It has been a lengthy process culminating in the current
“elaborate code defining the parameters within which evidence must fit if it is to be
admitted in contravention of the statutory prohibition”, to quote from the Lord Justice
Clerk’s opinion in the present case. It is also fair to recognise that the past and present
legislative provisions have consistently posed challenges, to both practitioners and judges
alike, in determining their proper scope and application. There is however one touchstone
which ought to have remained constant throughout this journey, that is the concept of
relevancy. None of the statutory restrictions could ever have allowed the admission of
evidence which did not pass the common law test of relevancy. However, experience has
shown that significantly different views as to what constitutes relevant evidence in this field
have abounded. Two examples suffice to make the point.
[110]       In the case of Kinnon v HM Advocate 2003 SCCR 295, where the appellant was
charged with attempted rape, the court allowed an application to lead evidence that within
the month before the alleged offence the complainer had on one or two occasions suggested
to the appellant's son that she wished to have a sexual relationship with him. Conceding the
appeal, the Crown’s submission was that the evidence appeared to be relevant to the
appellant's guilt, and might well have a bearing on the issues in the case. It might influence
a jury to conclude that there was a genuine doubt as to the guilt of the accused. It must be
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assumed then that both the Crown and the court saw a correlation of logic, experience and
common sense such as would allow the evidence of what the complainer said to the son to
cast light on whether there was consent during the subsequent sexual interaction between
the accused and the complainer.
[111]       In the case of R v A, referred to by Lord Glennie in his opinion, the first instance
judge had granted an application to lead evidence of the fact that the complainant had
engaged in sexual intercourse with the defendant’s friend, with whom she was in a
relationship, some hours before the attack upon her which she spoke of by the defendant.
Although that decision was reversed on appeal, one would again, perhaps, assume that the
first instance judge saw in that evidence a common sense connection of the sort that would
illuminate the question of consent between the complainant and the defendant. There seems
to have been no other suggested relevance.
[112]       I venture to suggest that such views on relevancy would not find support currently
in this jurisdiction. Part of the explanation for such variation of view amongst judges can I
think be found in the cautionary note sounded by Justice L’Heureux-Dubé in giving her
opinion in the case of R v Seaboyer [1991] 2 SCR 577 at page 679 where, having canvassed the
various definitions of what constituted relevant evidence, she said:
“Regardless of the definition used, the content of any relevancy decision will be filled
by the particular judge’s experience, common sense and/or logic. For the most part
there will be general agreement as to that which is relevant and the determination
will not be problematic. However, there are certain areas of enquiry where
experience, common sense and logic are informed by stereotype and myth. As I
have made clear, this area of the law has been particularly prone to the utilisation of
stereotype in the determination of relevance ….”
[113]       With this warning in mind in carrying out my own analysis, it seems to me to be
necessary to consider the impact of the case of R v A. Lord Glennie has drawn on the
speeches in that case in arriving at his view that the evidence proposed in the present
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application does pass the test of relevance. As as in SJ v HM Advocate 2020 SCCR 227,
reliance has been placed on the content of that decision without it having been referred to by
the parties in their submissions. For my part I recognise that my analysis will be the poorer
for that absence, but the fact that experienced senior counsel decided to advance their
arguments in this way may be a telling factor in its own right.
[114]       In R v A the judges of the House of Lords were concerned to determine whether
evidence of a “sexual relationship” between the defendant and the complainant could be
relevant to the issue of consent, so as to render the apparent almost blanket exclusion under
the statutory provision contrary to the right to a fair trial. They were assessing whether such
evidence could ever be relevant as a matter of principle, not whether the evidence which the
defendant wished to introduce in fact met the test of relevance.
[115]       The consensus expressed by all of the judges was that evidence of prior sexual
conduct between the complainant and the defendant could (my emphasis) be relevant to the
issue of consent. I would suggest that in so doing their Lordships made a statement which,
on the face of it, is consistent with the current jurisprudence in this jurisdiction. In LL v
HM Advocate 2018 JC 182 in giving the opinion of the court at paragraph [14] Lord Brodie
said:
“We simply do not see why the fact that there was free agreement and reasonable
belief as to that agreement on one occasion, makes it more or less likely, as a matter
of generality, that there was free agreement and reasonable belief as to that
agreement on another occasion many months later. What we would suppose it
would be intended to suggest to the jury is that if there was free agreement on the
first occasion it might be inferred that there was free agreement on the second
occasion. But why is that so? Very significantly, when counsel was asked to identify
the basis for such an inference, first before the preliminary hearing judge and then
before this court, counsel was unable to do so. That is not to say that there may
never be cases where a previous act of intercourse might not be relevant to the issue
as to whether the complainer consented on a subsequent occasion or to the issue of
whether an accused reasonably believed that the complainer was consenting.
However, in such a case particular circumstances would have to be averred to
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demonstrate what was said to be the connection between what we would see as,
prima facie, unrelated events.”
[116]       As in R v A, the court in LL v HM Advocate recognised that prior sexual conduct
between the complainer and the accused could be relevant to the issue of consent. One can
then turn to look more closely at their Lordships’ speeches and ask whether anything which
was said demonstrates that the judges of the House of Lords had in mind a different
application of the principle from that which came to be set out in LL v HM Advocate.
[117]       It may be helpful to begin by taking account of the Report of the Advisory Group On
The Law of Rape 1975 (Cmnd 6352) (“the Heilbron Report”), since that report is mentioned
by some of their Lordships and by Lord Glennie. That group was asked to give urgent
consideration to the law of rape in England and Wales and to advise whether early changes
in the law were desirable. In the introduction to its report at paragraph 3 the group noted
that:
“Since we were asked to report within a short time we have had to confine ourselves
to those aspects which seemed to us to require particularly urgent attention and
which could be adequately dealt with in the timescale available.”
[118]       At paragraph 100 of the report the group set out what their understanding of the
then current law was in relation to cross examination of the complainant as to her
relationship with the accused. They stated that the complainant can be asked questions as to
her previous relationship with the accused on the basis that such evidence could be relevant
to an issue, in that it might tend to prove consent. The group vouched that statement of the
law by reference to the cases of R v Cockcroft and R v Riley, the former a first instance case
from 1870 and the latter an appeal court case from 1887. In giving his opinion in Riley,
Lord Chief Justice Coleridge stated that the trial judge had been wrong to exclude evidence
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of the complainant having had episodes of sexual intercourse with the accused on prior
occasions. He explained his decision as follows:
“But to reject evidence of her having had connection with the particular person
charged with the offence is a wholly different matter, because such evidence is in
point as making it so much the more likely that she consented on the occasion
charged in the indictment. This line of examination is one which leads directly to the
point in issue.”
The other judges concurred with his opinion, Mathew J observing that the decision was:
“… in accordance with justice and common sense.”
[119]       When the advisory group turned to set out the approach which they suggested
should be adopted, they explained at paragraph 134:
“We think that questions and evidence as to the association of the complainant with
the accused will, in general, be regarded as relevant to the issues involved in a trial
for rape …”
[120]       In setting out this view the group did not engage in any analysis or debate. It may
be that due to the time constraints which they were working under the members of the
group decided to concentrate on more pressing issues. Equally, it may be that this view of
general admissibility, apparently reflecting the decision of the court in Riley, was still
consistent with societal thinking in 1975. It is certainly inconsistent with the decision some
40 years later in LL v HM Advocate. It also seems hard to reconcile with the view expressed
by Baroness Hale, albeit in a different context, in the case of R v C [2009] UKHL 42 at
paragraph 27:
“My Lords, it is difficult to think of an activity which is more person and situation
specific than sexual relations. One does not consent to sex in general. One consents
to this act of sex with this person at this time and in this place. Autonomy entails the
freedom and the capacity to make a choice of whether or not to do so.”
[121]       In giving their speeches in the case of R v A their Lordships did not adopt or approve
of an approach of general admissibility, and of course Lord Glennie does not suggest that
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they did. Nor, however, did their Lordships adopt the view expressed by the Court of
Appeal in its decision in the case, reported at [2001] EWCA Crim 4. At paragraph 31 Rose LJ
said:
“In our judgment, provisional though we emphasise it is, it is not mythical but
common sense that a person, whether male or female, who has previously had
consensual intercourse with another, particularly in recent weeks or months may, on
the occasion in dispute have been more likely to consent to intercourse with that
other than if that other were a stranger or one with whom no previous sexual
familiarity had occurred. We do not accept, on the basis of the matter as we presently
understand it, that such an approach stems from "sexist beliefs about women which
distort the trial process". On the contrary, it seems to us to reflect human nature,
regardless of sex. The trial process would be unfairly distorted if a jury were
precluded from knowing, if it be the case, that the complainant and defendant had
recently engaged in consensual sexual activity with each other”.
It seems to me that whilst that view might sit quite well alongside the approach to relevancy
which Lord Glennie would adopt, the judges in the House of Lords approached the matter
in a more restricted manner, and, in what was said by some, one can detect a
straightforward rejection of this approach.
[122]       At paragraph 31 Lord Steyn said that such evidence may “depending on the
circumstances” be relevant to the issue of consent. In the same paragraph he said that a
prior relationship between a complainant and an accused “may sometimes” be relevant to
what decision was made on a particular occasion. At paragraph 45 he reiterated that
“sometimes” logically relevant sexual experiences between a complainant and accused may
be admitted but that there will be cases where such previous sexual experience will be
irrelevant. At paragraph 78 Lord Hope identified that evidence of sexual relations between
a complainant and the defendant could only be admitted on the test of whether the evidence
and questions “relate to a relevant issue in the case”. At paragraph 125 Lord Clyde
recognised that such evidence “may” be relevant as casting light on the question of the
complainant’s consent.
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[123]       I would therefore suggest that despite the references to the Heilbron Report, it is
obvious that their Lordships recognised that the law in this area now required to be applied
in a more nuanced fashion. To that extent then, their Lordships’ approach to the application
of principle does not seem to me to be in conflict with the decision in LL v HM Advocate.
[124]       Although their Lordships were not determining the relevance of the proposed
evidence in R v A, some insight can be gleaned as to what they had in mind by the sort of
evidence which might relevantly cast light on the issue of consent. At paragraph 10
Lord Slynn referred to evidence such as two young people who lived together or regularly
as part of a happy relationship and had had sexual acts together. At paragraph 32
Lord Steyn observed that good sense suggests that it may be relevant to an issue of consent
whether the complainant and the accused were ongoing lovers. This was the context in
which he asked whether the jury is simply to be told about what happened in the bedroom
without any idea of whether the defendant was a trespasser or an invitee. This was the
context in which he stated that to exclude such material creates the risk of disembodying the
case before the jury. It was because of the concern that evidence of this sort would not be
admissible in terms of the statutory provision that Lord Steyn came to suggest how to read
down the provision and explained that the test of admissibility to be applied by trial judges
was to be whether the evidence is nevertheless so relevant to the issue of consent that to
exclude it would endanger the fairness of the trial under article 6 of the convention. In
M(M) v HM Advocate Lord Justice Clerk Gill suggested a similar approach to the same sort
of evidential conundrum at para [27] of his opinion which has been followed ever since:
“[27] Counsel for the appellant suggested that sec 275 was not wide enough to allow
the appellant to put it to the second complainer that she and the appellant had lived
together before the date of the alleged rape. In my opinion, a prior course of
cohabitation by the second complainer with the appellant would not constitute
engaging in sexual behaviour not forming part of the subject-matter of charge (4) (cf
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sec 274(1)(b)). In my view, such cohabitation is outwith the purview of sec 274(1);
but if there is any doubt on the point, it should be removed if the sec is read with sec
3 of the Human Rights Act 1998 (cf R v A (No 2), Lord Steyn, paras 32, 45, 46).”
[125]       Further insight can be found in the speech of Lord Hutton at paragraph 152 where
he referred to circumstances of the recent close and affectionate relationship between the
complainant and the defendant and explained where the relevance of such evidence would
lie. It was not in the bare fact of prior consent but that it would show the complainant’s
specific mindset towards the defendant, namely her affection for him. He contrasted such
evidence with evidence of isolated acts of intercourse, even if fairly recently, without the
background of an affectionate relationship, which he identified as being probably irrelevant.
[126]       These passages it seems to me point towards a particular and limited set of
circumstances in which their Lordships saw the potential for evidence of prior sexual
contact between the parties to reach the test of relevance. I recognise that other passages can
be identified which might suggest a broader approach but I do not agree that it properly
conveys the tenor of the case to say that all members of the House accepted to a greater or
lesser degree that evidence of a prior sexual relationship may well be relevant to the issue of
consent. In the passages to which I have drawn attention, a particular and narrow context in
which such evidence might be relevant is identified. Furthermore, I suggest that in the
passages to which I refer below one can detect the stark rejection of a more general
approach.
[127]       I do not read their Lordships speeches as providing support for the view that
evidence of prior sexual contact between the accused and the complainer will “often” be
relevant to the issue of consent. In so far as their Lordships identified the type of case in
which such evidence might be relevant they focused on the sort of relationship as described
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by Lord Hutton which would show a mindset of affection on the part of the complainant
towards the defendant. It is clear from the distinction which Lord Hutton drew that, for him
at least, such affection would not be evidenced simply by prior acts of intercourse.
[128]       To give further context to what their Lordships said, it also seems to me to be
important to bear in mind what the proposed evidence in R v A was. The defendant wished
to lead evidence that the complainant initiated consensual sexual intercourse as part of a
continuing sexual relationship covering a period of approximately three weeks prior to the
allegation, and that they had sexual intercourse at his flat on various occasions in the
preceding few weeks, the last being one week before the date of the allegation. As I read the
decision, the only judges who expressed a view as to whether the actual proposed evidence
would be relevant were Lord Hope and Lord Hutton.
[129]       At paragraphs 105 and 106 Lord Hope explained that he did not consider that the
evidence proposed was relevant. At paragraph 106 he said:
“All he appears to be relying upon at present is the mere fact that on various
occasions during the previous three weeks she had had consensual intercourse
with him in his flat. As I have said, I consider that this fact alone and nothing
else is alleged about it is irrelevant to his defence of consent.”
[130]       At paragraph 154 Lord Hutton said:
“If the evidence were confined to those bare facts I would be of opinion that it
would not be relevant to the issue of consent. But it may be that the defendant
will be able to give more detailed evidence of his relationship with the
complainant which would make his evidence of previous consensual intercourse
relevant.”
[131]       These expressions of opinion on the relevance of the actual evidence proposed
demonstrate two things. First, both of their Lordships expressly rejected the approach
which the Court of Appeal thought of as reflecting common sense. Second, that even in this
category of evidence, both of their Lordships were of the view that there would require to be
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a particular circumstance to demonstrate the link between what would otherwise be prima
facie unrelated events. That appears to me to be entirely consistent with the decision in LL v
HM Advocate and I cannot detect in R v A any support for the proposition that the decision
in LL identifies an approach which is contrary to logic, experience and common sense.
[132]       It therefore seems to me that when explaining that evidence of prior sexual conduct
between a defendant and a complainer could be relevant in circumstances such as a couple
in a close and affectionate relationship, or a couple who lived together, their Lordships were
describing an approach which is accommodated by Lord Gill’s opinion in M(M) v
HM Advocate. Their Lordships approach does not conflict in any way with the requirement,
in different circumstances, for there to be an averred link between a prior act of intercourse
and the act which is said to have been consented to. What Lords Hope and Hutton said
appears to provide positive support for the need for such a link. A similar approach was
taken in the decision of the Supreme Court of Canada in R v Darroch 2000 SSC 46, in which
Gonthier J, in giving the decision of the court, stated at paragraph 58, “actual consent must
be given for each instance of sexual activity”. In that same paragraph the court stated that
“evidence of prior sexual activity will rarely be relevant to support a denial that sexual
activity took place or to establish consent.” At paragraph 56 the court explained that if an
application to lead evidence of sexual history is made the evidence must be relevant to an
issue at trial and the defence must establish a connection between the complainant’s sexual
history and the accused’s defence. I interpret the statements made by Lords Hope and
Hutton, as taken along with the statements of the Supreme Court of Canada, as coinciding
with the approach set out in both Oliver v HM Advocate and Lee Thomson v HM Advocate, as
quoted from in Lord Glennie’s opinion. In totality those statements provide powerful
support for the view that evidence of prior sexual relations between the parties will in
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general be treated as irrelevant and they contradict the suggestion that such evidence will
often be relevant to the issue of consent.
[133]       In any event, theexamples given in R v A of circumstances in which evidenceof prior
sexual conduct might be relevant do not correspond to any extent with the circumstances in
the present case. Nor do they seem to me to provide any support for the present appellant’s
contention that evidenceof sexual activity on his first datewith thecomplainer is in any way
relevant to the issue of whether or not he subsequently had intercourse with her when they
returned to his home after a night out. The claimed episode the following morning is in the
same position.
[134]       Lastly it is worth noting that, although their Lordships were dealing with the
question as a matter of principle, at paragraph 94 Lord Hope drew attention to the fact that
the law would fail in its purpose:
“ … If evidence or questions are permitted at the trial which lie so close to the margin
between what is relevant and permissible and what is irrelevant and impermissible
as to risk deflecting juries from the true issues in the case.”
[135]       The same point was made by Lord Hutton at paragraph 142 where he identified that
in a charge of rape the law must have a (third) objective of ensuring that the woman is
treated with dignity and is given protection against cross examination and evidence which
invades her privacy unnecessarily. He went on to say:
“Linked to the third objective is the further consideration that allegations relating to
the sexual history of the complainant may distort the course of the trial and divert
the jury from the issue which they have to determine.”
[136]       These are both references to the danger inherent in collateral evidence. Their
Lordships do not address the question of how contested evidence of prior sexual conduct is
to be admitted or adjudicated upon. This may be because the evidence of prior sexual
conduct which they were considering as being admissible was in the context of obvious or
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established relationships. Again this is very far from the circumstances of the present case
and I see no suggestion in Lord Glennie’s opinion as to how the jury would be expected to
adjudicate over the contested evidence of other sexual activity which he would admit. In
this context I would observe that it does not seem to me to be correct to state, that the
accused “admits” that he and the complainer had sex on other occasions. He does not admit
this, he contends it, and that is where the problem arises.
The application of section 275
[137]       I note that in considering the application of section 275(1) of the 1995 Act
Lord Glennie would hold that the evidence and questioning proposed will relate only to
specific occurrences of sexual behaviour demonstrating the complainer’s character on the
night in question. No elaboration is given of what this means. For my part, I do not accept
that evidence which demonstrates that a young woman had sexual intercourse on her first
date, with a young man whom she had recently made the acquaintance of, is of itself capable
of demonstrating anything of relevance or value about the character of the young woman
involved, any more than it is capable of demonstrating anything about the character of the
young man concerned. Far less do I understand how it can be said that an act of intercourse
the following morning can demonstrate the young woman’s character “on the night in
question.”
[138]       In any event, it does not seem to me that section 275(1)(a) directs the court to an
assessment of whether evidence of a specific occurrence of sexual behaviour demonstrates
anything about the complainer’s character. To apply section 275 in this fashion appears to
me to be to ignore the “invisible comma” to which the Lord Justice Clerk drew attention in
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paragraph [65] of her opinion, see also DS v HM Advocate 2007 SC (PC) 1, Lord Hope of
Craighead at paragraph 48 and Lord Rodger of Earlsferry at paragraph 72.
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY CH AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_43 (13 October 2020)


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